MauledAgain

Prof. James Edward Maule's more than occasional commentary on tax law, legal education, the First Amendment, religion, and law generally, with sporadic attempts to connect all of this to genealogy, theology, music, model trains, and chocolate chip cookies. Copyright 2004-2019 James Edward Maule.

Monday, May 30, 2011

Free, Freedom, Fees, and Taxes

Memorial Day is a day of commemoration that has evolved into a holiday marking the start of the summer vacation season. Though there remain some parades, the percentage of Americans visiting veterans’ gravesites or otherwise honoring those who have served to protect the freedom of the nation is diminishing. Ask 100 Americans at random what Memorial Day means, what it’s about, and what they are doing on that day. Some do, like the Honorable Patrick Dugan of the Philadelphia Veterans Court, who in Keep Alive Those Who Made the Sacrifice writes that “For most of my life, I was like most people: I knew what Memorial Day stood for, but I didn't really stop to think about what it truly meant. That changed after I went to Iraq in 2003 as a civil-affairs soldier with the Army Reserves. When you serve with people who don't come home, Memorial Day means something different.” It’s tough to understand, and even more challenging to explain, that freedom is not free.

Americans surely understand the word “free,” for it shows up frequently in the phrase “free market” and in the slogan “free to do what I want.” Yet when asked to pay for freedom, too many Americans balk, even when the cost facing them is far less than their time, their physical well-being, and their life. The notion that freedom is free is becoming ever more omnipresent in the culture.

Here’s a case in point that pulls together the concept of freedom and the beginning of the vacation season. In Beachgoers: If It’s Free, It’s for Me, the Associated Press reports that for the third time in four years, people voting in the New Jersey Sea Grant Consortium annual contest selected the Wildwoods – consisting of Wildwood, Wildwood Crest, and North Wildwood – as the joint winner. A major factor in the voting is the fact that, unlike many other New Jersey beaches, the Wildwoods does not charge for a beach tag. In the same issue of the Philadelphia Inquirer in which that Associated Press story appears is another report, the headline for which gives away the point in question: New Jersey Shore Communities Scrape to Keep Visitor Services. The mayor of the town of Wildwood, which is facing a $2 million budget deficit, is considering laying off 20 of its 36 police officers, and at least five firefighters. When? On June 1, the beginning of tourist season. Of course, everyone who has weighed in on the question claims that such a move would be disastrous, because, quoting the deputy city mayor of another shore town, “We have a certain level of service in the summer that people come to expect.” As another official put it, “The people who come here for vacation have to feel safe.” During the summer, 295,000 tourists take the town’s population from 5,000 to 300,000, and, according to that official, “aren’t interested” in the town’s budget problems because “[t]hey just want to have a good time.”

Perhaps if the town charged beach fees it would have the resources to cater to the 295,000 tourists who flood the resort. Town official after town official echoed the same theme, that visitors expect services at least as good as those that they experienced the preceding year, that they will not return if the services decline in quantity or quality, that they don’t care about the fiscal woes of the town they are visiting, and that their only interest is in having fun. The notion of “let’s have fun but let someone else pay for the things we get for free” is pernicious.

In order for a person to have something for free, someone else must pay. Most children receive their food, shelter, and clothing for free because their parents pay. But when tourists use a beach for free, requiring lifeguards, safety patrols, litter removal, public restrooms, parking, and other amenities, who pays? Should 5,000 pay for the freedom of 295,000?

The question of who pays the bills to use a free beach would be irrelevant but for the fact that this nation exists, has beaches, and has a citizenry that is free to go to the beach. In some countries, people aren’t free even to travel outside their home village, let alone jump in a car, train, or plane to head for some resort. There are people who paid for that freedom with something far more than suitcases full of cash, namely, with their lives, and they deserve recognition and thanks on this Memorial Day. Paying taxes or beach fees pales in comparison to paying the price that has been paid by the veterans whom we cannot thank in person. The best we can do is to honor their memory. And the best way to do that is to respect freedom and to acknowledge that freedom is not free.

Friday, May 27, 2011

Tax Revenues Used for Replenishment

It was rather startling to read the headline in this story: U.S. Allocates Record Amount for Beach Projects. A government saddled with trillion dollar deficits has found a way to increase the amount of money it spends on pumping sand onto beaches? Almost $150 million is slated for beach projects, which is the highest annual amount since “the nation’s most prominent coastal lobbyist” began in 1995 to record these sorts of expenditures. Most of the money is spent to put back onto the beach sand that storms, through natural processes, have washed out to sea, presumably so that nature can again take the sand out to sea and create more opportunities to spend tax dollars to put the sand back onto the beach.

So how is it that federal spending on beach replenishment can increase when other programs, such as those used to feed hungry people or provide medical care to impoverished children, are being cut? There may be some clues in another article, one that describes the efforts of those who own private beach property to restrict public access to beaches. What the beach replenishment money protects is, according to yet another article, to protect private investment in private homes, privately-held hotels and motels, and privately-owned businesses. In many instances, these structures are built in places guaranteed to be washed out by typical seashore storms. One coastal activist explained, "It's just a bailout for the rich who build homes in dumb places."

I wonder if anyone has done a survey to determine how many people who complain about taxes and advocate reduced government spending own properties whose beaches are being replenished at public expense. In the meantime, the lobbyists are attempting to get the federal government to double the amount of money it is pouring into beach sand that will be washed back out to sea. Even though the story is probably a legend or tall tale, even Canute had the good sense to understand the power of the ocean.

Across America, millions of people experience topsoil erosion, as rains wash dirt off their lawns and into streets, storm sewers, and creeks. How many of these people are getting topsoil replenishment at taxpayer expense? Next time someone heads to the store to purchase bags of topsoil, or pays for a delivery of several yards of dirt to restore the lawn, perhaps they should close their eyes and pretend they’re the owners of a home with a private beach whose sand is being replenished courtesy of taxpayers.

Wednesday, May 25, 2011

In Tax, as in Life, Just One Word Can Matter

On Sunday, as reported in this story, Senate Republican leader Mitch McConnell stated that he and his party oppose higher tax rates. Most people consider tax rates changes to match tax revenue changes. That’s true for a simple tax that is computed simply by multiplying a rate by a standard measure. But it’s not true for a complicated tax, and there are plenty of complicated taxes, such as the federal income tax. Reduction or elimination of gross income exclusions, deductions, credits, or any combination of those items, can increase tax revenue despite the lack of changes in the tax rates. Enactment of additional exclusions, deductions, or credits can decrease tax revenue even though rates remain the same. Though Congress hasn’t reduced federal income tax rates for almost a decade, it has reduced taxes through a flood of new and expanded tax credits, deductions, and gross income exclusions.

What is significant about McConnell’s statement is that he did not articulate opposition to increased taxes, or increased revenue. When pressed about tax expenditures, McConnell not surprisingly sidestepped the issue. He is under pressure from the extreme right, which seeks reduced tax revenues, reduced spending, and presumably unavoidable consequences of reducing revenue and spending. Yet at least one other conservative Republican, and, yes, that is not an oxymoronic phrase, has suggested that overall tax reform that repeals loopholes and subsidies would be welcome even if it brings increased tax revenues while lowering tax rates.

A simple, or more pragmatically, a simpler, tax code can generate unchanged or increased tax revenues while lowering rates or leaving them alone. On account of all the special provisions and disguised spending buried in the tax law, rates are higher than they otherwise would be. Advocates of cutting federal spending need to look at, and some have started to look at, spending in the form of tax reductions for special interest groups. Imagine, for example, a federal income tax computed by subjecting all income to tax, with deductions allowed only for the direct cost of generating business and investment income, with basis and rates indexed for inflation and with no special rates or other provisions favoring special groups. The tax rates could be lowered to at least half of what they currently are, and perhaps even more. The price for rates that would no longer generate visceral negativity from most taxpayers would be a farewell to depreciation deductions for properties increasing in value, credits for all sorts of personal and business activity that ought to take place only if the market encourages it or citizens vote to require it through direct regulation, exclusions for fringe benefits that generally favor well-compensated employees, and deductions for things such as home mortgage interest that distort the housing market, to name but a few of the things that make the tax law a minefield for well-intentioned taxpayers and a playground for the greedy.

Of course, simplifying the tax law will bring howls of protest. Some might think that those who seemingly benefit from the mess, specifically tax return preparers and tax planners, would oppose the changes, but anyone who listens to tax practitioners, and I do, will learn very quickly that the complexity has made their jobs almost impossible to perform. They are sufficiently wise to know that even with the sort of changes that I, and others, advocate, they will continue to be busy. For example, timing issues will not go away until the earth stops rotating around the sun.

The howls of protest will come from the special interest groups that think they are entitled to special treatment. Like the drivers who go straight out of the left-turn lane as self-appointed VIPs, the special interest groups are quick with the excuses purporting to demonstrate that absent the special break the economy and nation will collapse, but short with the track record of demonstrating that the special break did anything for anybody other than its proponents who paid, excuse me, lobbied for its passage. The murkiness of federal politics makes it very difficult for people who understand the unfairness of the lane jumper to understand the similar inequities fostered by privileged access to the halls of power.

So, let’s stop focusing on tax rates, and put that distraction aside. Let’s turn the nation’s attention to the federal spending that, until recently, has gone unnoticed by the public because it is hidden in a labyrinth of badly drafted and deliberately obfuscated tax law.

Monday, May 23, 2011

What is Income?

In most basic federal income tax courses, students early on confront a question that has accompanied the income tax on its entire life journey. What is income? Section 61(a) defines gross income, the starting point in calculating taxable income on which tax liability is computed, as “all income from whatever source derived.” Thus, before a person can determine gross income, a person must determine income.

Why does this matter? Income is important not only in the computation of gross income, taxable income, and tax liability, but also in determining whether a person qualifies for assistance that is limited to individuals with incomes under specified levels. For example, in New York State, an individual in a one-person household is are eligible for food stamps if his or her annual income is less than $14,088. The cut-off increases as the household size increases, and is further increased if someone in the household is disabled or elderly. Eligibility actually is more complicated, but the essential point is that benefits are geared to individuals with low income.

So what happens if a person wins $2 million in a lottery? Does the person become ineligible for food stamps? According to the Michigan Department of Human Services, no. As reported in this story, a lottery winner who hauled in $2 million was permitted to continue receiving food stamps because lottery winnings are not considered income. Even though eligibility for food stamps “is based on gross income,” lottery winnings are considered liquid assets and not income. Hello? The last time I checked, gross income includes lottery winnings. There are a not insubstantial number of cases and rulings that make that conclusion unquestionable.

I do not understand why lottery winnings are not treated as income for purposes of food stamp eligibility. Food stamps are designed to assist low-income individuals. A person who takes in $2 million in one year is not a low-income person. Certainly not for that year, and certainly not for each succeeding year if the proceeds are invested wisely. After taxes, the $2 million becomes roughly $1.2 million, which should generate something in the neighborhood of $40,000 to $60,000 each year. There are many people in this country who survive without food stamps on annual incomes of $40,000 to $60,000.

The person in question, when interviewed, stated, “If you're going to try to make me feel bad, you're not going to do it.” Legally, the lottery winner is entitled to food stamps, and was told so by the Michigan Department of Human Services. One Michigan state senator commented that for the winner to continue using food stamps, funded by taxpayers, after winning the lottery, is “obscene.” That the winner lacks the moral fiber to waive his right to food stamps is a different question. The winner’s attorney correctly pointed out that he notified the state. He added, “The problem is with the state.”

Technically, the problem is with whoever designed a system that treats someone who wins $2 million as a low-income person, by considering what clearly is income as not income. As the Michigan state senator noted, “What a waste of taxpayer money.”

It’s this sort of bureaucratic nonsense, statutory defectiveness, and regulatory shortcomings that add inspiration for the anti-tax crowd. The effort to help needy people gets targeted because the system is badly implemented. Although Michigan has requested a waiver from the federal government that would permit it to count the lottery winnings as income, the more sensible outcome is for Congress to make it unquestionably clear that excluding lottery winnings from income is total absurdity.

Friday, May 20, 2011

Congressional Mis-delegation Endangers Tax Collections

Several months ago, in The Problem with Income Tax Vehicle Credits, I criticized the Congress for burdening the IRS with administration of all sorts of programs that ought to be handled by the federal agencies charged with oversight of those sorts of programs. I wrote:

During the past two decades, Congress has heaped credit upon credit onto the tax system, putting administration of environmental, energy, health, labor, child care, and all sorts of other matters into the hands of the IRS rather than the federal agencies charged with oversight of these areas. At the same time, the Congress has failed to provide the IRS with sufficient funding to administer these credits. It’s not surprise, then, that the IRS hasn’t developed a full and efficient set of procedures to manage each of the many dozens of credits that it must supervise.

This was not the first time I had emphasized the misguided approach that the Congress repeatedly follows. For example, slightly more than a year ago, in IRS Ought Not Be the Health Care Enforcement Administrator, I rejected the idea that the IRS should become the health care enforcement agency. Three years ago, in Not To Its Credit, I pointed out the foolishness of making the IRS responsible for administering energy incentive payments:

It's not that I object to the goals. I object to the Internal Revenue Service being turned into a institution that is focused more on the technical requirements of energy production activities than on administering revenue laws. I wonder why financial incentives to produce and conserve energy aren't administered by the Department of Energy. Well, I know the answer. The Congress, though every now and then publicly trashing the IRS and characterizing it as harmful, then turns to the same agency to administer its favorite incentives programs. Which should speak more loudly to America? What Congress says when it grandstands or what it does when it overburdens the tax law and the IRS because it apparently doesn't trust other agencies to administer laws relating to agriculture, energy, employment, or health?

I’m not the only one who notices the tax law complexity that is attributable to spending programs hidden in the Internal Revenue Code. In Tax Talk at the Gym, I explained my response to someone who had

stopped me and asked why the tax law was filled with so many provisions that weren't a matter of revenue collection but expenditures. The answer is an easy one, because it's asked every semester by students in the basic tax course. Why not have the Department of Energy write checks to companies and individuals who are doing things to develop or conserve energy instead of administering the grants through tax refunds? Why not have the Department of Labor reimburse employers who hire members of targeted groups? The answer rests in the Congress' confidence with those other agencies and with the supposed speed with which tax refunds can put money in the taxpayers' hands in contrast to check-writing programs.

I’ve been harping on this problem for decades, and the topic appeared in the early days of this blog. Six years ago, in the frighteningly titled Prof. Maule Goes to Washington, I challenged Congress’s practice of relying on the IRS to do the work of other agencies:

I understand that the Congress, which consistently criticizes the IRS, has a habit of demonstrating its true thoughts about that particular federal agency by putting into the tax law provisions that deal with matters that are within the purview of other federal agencies because the IRS appears to be more capable of administering these programs, but it's time for Congress to demand of the other agencies the same sort of competence that it attributes to the IRS when it turns to the IRS to handle its pet project of the week.

As has always been the case, I rejoice when others step up and corroborate my contentions. That happened last week.

In The IRS Oversight Board Annual Report to Congress 2010, released about a week ago, the IRS Oversight Board reported to the President, the Congress, and taxpayers on the state of the IRS, its accomplishments, its shortcomings, and its challenges. The Board pointed out two weaknesses, namely, the tax gap and archaic information technology systems. It then turned its attention to another concern. The Board’s comment seems familiar:

These two weaknesses are exacerbated by another concern: an under-appreciation of the importance of tax administration to the nation’s economic well-being as evidenced by a willingness to expand the complexity of the tax code with little regard for the impact on taxpayers or the resources needed by the IRS to administer the code. In recent years, the tax administration system has been used to deliver quickly and efficiently a variety of financial benefits to taxpayers during a period of economic turmoil. The IRS has responded well to these challenges, but the result has been to stretch the IRS’ resources thin. Every new tax provision added to the internal revenue code requires both service and enforcement resources for successful implementation.

The Board repeated its reference to “thin” IRS resources when it noted, in yet another familiar comment, the challenges of having the IRS function as the healthcare enforcer. The Board pointed out that failure to fund the IRS exacerbates the risks of turning IRS attention away from “responsible tax administration” and again referred to “IRS resources already stretched thin to administer an increasingly complex tax code.”

An excellent example of the dangers presented by how Congress uses or, more specifically, mis-uses or abuses, the tax law for purposes of gaining political advantage in the vote collection game can be found in its approach to dealing with the problems of economically distressed areas. I am in the early stages of revising a Tax Management portfolio that focuses on this aspect of the tax law. Although subject to change, at the moment I have identified at least forty different tax breaks available to persons, businesses, programs, or activities in any one of at least 14 different types of economically distressed areas. Some breaks are available to one area, some to many areas, and only a handful to all areas. Most of the tax breaks come with expiration dates, most of which are annually extended by a Congress that can hold the extension hostage to the vote collection process. There’s much more leverage available to a legislator when a tax break is on the verge of expiring than there is when a tax break is permanent. Combined with the inability to put relief for economically distressed areas in the hands of the appropriate agencies, the tax legislation game that has polluted the legislative process ever since the leverage twist was identified and put to work threatens the well being of the nation because it imperils the ability of the IRS to collect the revenue. While the IRS is playing multiple grant-making roles, tax returns that should be audited go unaudited. Sometimes I wonder if there aren’t members of Congress who secretly wish for this potential revenue collection failure to come to fruition so that they can impose their “tax only wages under the guise of a flat tax” scheme on America.

The fact that something can be done well and isn’t ought to be a message for all Americans. Perhaps the fact that I’ve been complaining about this for quite some time isn’t sufficiently persuasive. But perhaps the fact that the IRS Oversight Board has said the same thing – though perhaps more tactfully – might have some positive impact on the national tax policy culture. Perhaps. Just perhaps.

Wednesday, May 18, 2011

Three Alarming Tax-Related Articles

If the bad news about earthquakes, tsunamis, nuclear melt-downs, tornados, and floods aren’t enough, here are three recent articles about less eye-catching, but no less dangerous and alarming economic and tax-related developments:

1. When Changing Energy Suppliers, Check the Details: If you think deregulation of an industry is a wonderful thing for consumers, think again. The article features a woman who “embraced deregulation” of electricity suppliers, was promised a “big discount,” discovered that the quoted low rate turned out not to be so low, calculated her monthly savings at $1.25, and reported, “I’m unhappy.” No kidding. Perhaps that’s why most Pennsylvanians have chosen not to jump on the “deregulation of business is good for the consumer” bandwagon. Those who have been around long enough have seen those bandwagons crash and burn too many times.

2. The Ugly Truth About Infrastructure (and Taxes): Not all truth is pretty, and the status of the nation’s infrastructure qualifies for something worse than the word ugly. Scott Huler, whose On the Grid: A Plot of Land, An Average Neighborhood, and the Systems that Make Our World Work was published a year ago, focuses on the crumbling transportation, energy, utility, and other infrastructure of the nation. He fears that as the infrastructure crumbles, so, too, will crumble the nation, and he expresses concerns, not unlike those I consistently highlight, that Americans are simply unwilling to pay for replacement and upgrading of what their ancestors bequeathed to them, because they have sipped so much of the “no new taxes, no tax increase, goodness, no taxes at all” sound bites being used by politicians to curry favor with voters. The information he provides about infrastructure issues in Japan, Libya, South Korea, and Seattle ought to be taught in the nation’s schools and highlighted on every news channel. He equates the “War on Taxes” with the “War Against Infrastructure.” Consider that, as of 2009, the American Society of Civil Engineer figured the nation to be $2.2 TRILLION behind in maintenance. Serendipitously, late last week I happened upon a History Channel program about infrastructure. This particular episode focused on California. I can’t imagine anyone in San Francisco who watched the program sleeping soundly at night. I can’t imagine anyone living near the two million miles of natural gas pipeline feeling comfortable after learning what happened in the San Bruno catastrophe and understanding how corporate cost-cutting contributed to the death and destruction. Huler claims that he “no longer know[s] how to respond” to the arguments against raising taxes to pay for what we need and use. He said that when he wrote his book he “worked hard not to become a shrieking harpy.” No problem, Scott, I’m sure that in the eyes of the “infrastructure grows on the money tree” believers, I’ve earned the shrieking harpy designation.

3. Gen Xer’s Dim Retirement Prospects: Claiming a better title than “shrieking harpy,” Jack VanDerhai has earned the nickname of “Dr. Doom” because of his “decades-long career of studying the increasingly grim odds of whether Americans can make it through retirement without, to be blunt, going broke.” VanDerhai has concluded the people most at risk of not surviving retirement economically are not current retirees or baby boomers, but Generation X. People in this age group face reduced Social Security and Medicare benefits, the demise of fixed pensions, flat wages, ownership of homes purchased at the top of an artificial market, higher mortgage debt ratios, and horrific investment returns on what little they scraped to save for retirement. Consider these numbers. A person born in 1949 who started investing in a 401(k) equity plan at age 30 (1979), realized a 9.2 percent rate of return as of February 2010, which is post-crash. A person born in 1959 who started investing in a 401(k) equity plan at age 30 (1989), realized a 5.5 percent rate of return as of February 2010. A person born in 1969 who started investing in a 401(k) equity plan at age 30 (1999), realized a 0.3 percent rate of return as of February 2010. Wait? A 0.3 percent rate of return from 1999 through 2010? Hmm, I wonder what economic policies dominated that decade?

Monday, May 16, 2011

One of the Great Mysteries of Tax Law?

In an editorial last week in the Philadelphia Inquirer, John Sununu, writing in opposition to repealing oil company tax breaks, offered an interesting proposition. No matter where one comes out on the question of how oil companies should be taxed, Sununu’s proposition is one that deserves scrutiny. Defending deductions available to oil companies, Sununu wrote, “The precise point at which a tax deduction becomes a ‘loophole’ or a tax incentive becomes a ‘subsidy for special interests’ is one of the great mysteries of politics.”

The commonly accepted definition of a loophole is a tax law provision that is written in a manner that permits its benefits to reach those who are not within the intended scope of the provision. Flaws in the language of the statute make it possible for savvy taxpayers and tax practitioners to exploit the provision in ways that were not intended. For example, clever tax planners figured out how to structure compensation arrangements for hedge fund managers so that the use of partnership tax law provisions converts what should be ordinary compensation gross income into capital gains taxed at lower rates. Sometimes Congress closes loopholes, but too often it takes so long that it appears Congress is surreptitiously approving their use by delaying corrective action.

Distinguishing tax incentives from subsidies for special interests is very difficult, if not impossible, because in many instances they are the same thing. It can be argued that all subsidies for special interests embedded in the Internal Revenue Code are tax incentives, because these subsidies are in the form of incentives that reduce tax liability. However, there are tax incentives that are not subsidies for special interests because they are available generally and are not limited to a select group of taxpayers. For example, the credit for adopting a special needs child is a tax incentive. The credit is not a subsidy for special interests because the general population has an interest in providing for the care of special needs children and encouraging people to participate in that effort. Another example is the deduction for income or sales taxes, because that deduction is available to all taxpayers. Yet there are tax incentives in the form of subsidies for special interests. For example, section 181 permits taxpayers who produce films and television programs to deduct costs in a more favorable manner than taxpayers in other industries whose deduction is computed under less generous depreciation deductions.

Two deductions available to oil companies that need to be questioned are those for depletion and for intangible drilling costs. Both are among the tax breaks that would be repealed by the Close Big Oil Tax Loopholes Act.

Percentage depletion permits a taxpayer to deduct the cost of its oil by subtracting from gross income a percentage of the income generated by the sale of that oil. For example, if a taxpayer pays $100 for the right to extract the oil in a specific place, and sells that oil for $1,000, the taxpayer’s depletion deduction easily can exceed $100. Taxpayers acquiring other types of assets, such as buildings, equipment, and vehicles, are not permitted to deduct more than they pay for the item.

Permitting an intangible drilling costs deduction for the cost of labor, fuel, repairs, supplies, and other expenses of constructing a drilling platform bewilders the mind of anyone who thinks intangible refers to something that does not have material substance. Yet not only have the courts so held, for example, in Exxon Corp. v. U.S., 547 F.2d 548 (Ct. Cl. 1976), Standard Oil Co. v. Comr., 77 T.C. 349 (1981), Texaco, Inc. v. U.S., 598 F.Supp. 1165( S.D. Tex. 1984), and Gulf Oil Corp. v. Comr., 87 T.C. 324 (1986), the IRS revoked Rev. Rul. 70-596, in which it had ruled that none of the expenditures for onshore construction of offshore drilling platforms were intangible drilling costs, and issued Rev. Rul. 89-56, in which it ruled that it would consider the issue on a case by case basis depending on the degree to which the platform is customized for a specific drilling location.

The argument that tax breaks are necessary to encourage oil companies to explore for, develop properties with proven reserves, extract, and sell oil, gas, and other hydrocarbons flies in the face of the reality of profits. If there are profits to be made from an activity, businesses will engage in the activity.

“The precise point at which a tax deduction becomes a ‘loophole’ or a tax incentive becomes a ‘subsidy for special interests’” may be “one of the great mysteries of politics,” but they are not mysteries of tax. There is no mystery in tax. The mystery is in the hidden machinations underway in the brains of those who enact tax law. It is from those mysterious thought processes that emerge the silliness of some tax provisions and the inefficiencies of others.

Friday, May 13, 2011

Unambiguous Tax Statute Ambiguity

It’s time for an exploration of statutory analysis. The statute in question is a state statute, from Pennsylvania to be specific, and involves a tax on daily gross table game revenue accrued by casinos.

Section 13A62(a) of title 4 of Pennsylvania’s Consolidated Statutes contains three paragraphs. The challenge arises from an inconsistency between the first two paragraphs.

Section 13A62(a)(1) states: “(1) Except as provided in paragraphs (2) and (3), each certificate holder shall report to the department and pay from its daily gross table game revenue, on a form and in the manner prescribed by the department, a tax of 12% of its daily gross table game revenue.”

Section 13A62(a)(2) states: “(2) In addition to the tax payable under paragraph (1), each certificate holder shall report to the department and pay from its daily gross table game revenue, on a form and in the manner prescribed by the department, a tax of 34% of its daily gross table game revenue from each table game played on a fully automated electronic gaming table.”

The first eight words of the first paragraph, namely, “Except as provided in paragraphs (2) and (3),” suggest that paragraph (1) does not apply if paragraph (2) or paragraph (3) applies. However, the first nine words of the second paragraph, namely, “In addition to the tax payable under paragraph (1),” suggest that paragraph (2) does not override or replace paragraph (1) but, rather, supplements it. The language of the first paragraph is inconsistent with the language of the second paragraph. Unfortunately for casino operators, the simple exercise of pointing out the inconsistency is insufficient. Someone in the tax department of the casino or from among the casino’s tax advisors must resolve the ambiguity because they need to determine the casino’s compliance position.

Greenwood Gaming and Entertainment, Inc., found itself in precisely that situation. It asked the Pennsylvania Department of Revenue to confirm the taxpayer’s conclusion that paragraph (2) was an exception to paragraph (1) that overrode paragraph (1). Not surprisingly, the Pennsylvania Department of Revenue disagreed, taking the position that paragraph (2) imposed a tax that supplemented the tax imposed by paragraph (1). Greenwood sought a declaratory judgment in its favor. And thus, some time later, the Commonwealth Court of Pennsylvania issued its opinion in Greenwood Gaming and Entertainment, Inc. v. Department of Revenue, No. 796 M.D. 2010 (March 9, 2011).

The Department of Revenue argued that Section 13A62 “is clear and unambiguous, rendering consideration of other possible indicia of legislative intent unnecessary and improper.” It argued that the “except” clause in paragraph (1) is tantamount to “except as modified by” rather than “except as replaced by,” relying on the “in addition to the tax payable under paragraph (1)” language in paragraph (2). The casino argued that Section 13A62 creates a “two-tired tax scheme,” under which gross table revenue is taxed at 12% under paragraph (1) and fully automated gross table revenue is taxed at 34% under paragraph (2). The casino stressed that the meaning of the word “Except” in its capacity as a preposition excludes the subject matter of paragraph (2), fully automated gross table revenue, from paragraph (1). Alternatively, if that interpretation was not accepted as the literal meaning of the statute, Greenwood argued that the statute was ambiguous, justifying consideration of other indicia of legislative intent and interpretation that resolves all doubt in favor of the taxpayer under 1 Pa. C.S. sections 1921, 1928.

The court concluded that the statute is not ambiguous. It also concluded that paragraph (2) imposes a tax that is in addition to the tax imposed by paragraph (1). The court reasoned that to treat paragraph (2) as an alternative to paragraph (1) would render meaningless the words “in addition to” but did not explain how treating paragraph (2) as an addition to paragraph (1) does not render meaningless the word “Except.” Any attempt to do so would demonstrate that the statute indeed is ambiguous.

The statute is ambiguous because it is badly drafted. To determine how it should have been drafted, it is helpful to examine the legislative history that the court did not utilize. Section 1103(3) of title 4 of Pennsylvania’s Consolidated Statutes explains that the authorization of gaming, including automated table games, was intended to “provide a significant source of new revenue to the Commonwealth to support property tax relief, wage tax reduction, economic development opportunities and other similar initiatives.” During the debate on the bill, Representative Dante Santoni, described by Greenwood as the sponsor of the legislation that enacted section 13A62, explained the intent underlying the legislation. When asked if permitting casinos to install fully automated gaming tables would undercut the goal of generating jobs by legalizing gaming, Santoni answered, “Mr. Santoni: Mr. Speaker, just to be clear: Yes. [The casinos] are allowed to have the maximum amount of fully automated machines at 250, but the tax rate is different. The tax rate is 34 [%] if the casino chooses to use those types of machines; 16 [%] initially, 14[%] after July 1 if they do not and use the standard tables that will require a dealer or a person, an employee.” The Fiscal Note issued by the House Committee on Appropriations elaborated as follows: “In addition to the fees collected, a state tax of 14% is imposed upon the daily gross table games revenue. This rate would be applicable for the first two years of operation for each facility, after which time the rate will decrease to 12%. This tax and any accrued interest is payable weekly to the Department of Revenue. The tax rate on fully automatic electronic gaming tables is 34%.”

If the legislative history is any indication of what the legislature wanted, then the statute was not drafted properly. The first nine words of paragraph (2) should have been drafted to read, “In lieu of the tax payable under paragraph (1),”. On the other hand, if the legislature intended a 48% tax rate, which is a doubtful conclusion, then the opening language of paragraph (1) should have been drafted to read, “Except to the extent modified by paragraphs (2) and (3),”. Either approach would be unambiguous, though the latter approach would be wholly inconsistent with the legislative history, and yet controlling because unambiguous statutes trump legislative history.

Somewhere along the line, someone, or perhaps several people, goofed. Someone, or perhaps several people, did not pay close attention to detail. My guess is that the language was constantly being changed, that multiple authors put their hands to it, and that no one person took ownership of a final review and edit of the language. Add to that the possibility that the legislative process had sped up as deadlines approached, and the recipe for difficulties was complete.

It is likely that Greenwood will appeal. It is not implausible that the Supreme Court of Pennsylvania will disagree with the Commonwealth Court’s conclusion that the statute, as enacted, is unambiguous. The language of paragraph (1) is inconsistent with the language of paragraph (2). That makes for an ambiguous statute. Let’s hope the Pennsylvania legislature doesn’t give us any more statutes of that quality.

Wednesday, May 11, 2011

Timing, Quantifying, and Allocating User Fees

More than three years ago, in User Fees and Costs, I shared my perception of user fees in a posting that focused on tolls. Tolls should be used to pay for the costs of building, repairing, maintaining, and operating the toll road, and to defray the economic burden that the road imposes on the surrounding neighborhoods. Tolls should not be used for programs unrelated to the road.

A few days ago, a friend and law school classmate pointed me in the direction of an article in the Daily Journal Newswire. According to the article, a bill has been introduced in the California legislature to impose a $20,000 fee on each mortgage servicer for each foreclosure that the servicer processes. Supporters of the bill claim that it is necessary “to make mortgage lenders more accountable in dealing with at-risk borrowers.” The legislator who introduced the bill explained that its purpose is “to try to capture some of the hidden costs of foreclosure to our communities,” giving as examples “costs to law enforcement” and “the cost of blight that happens when property values go down.” Yet the bill provides that the funds raised by the $20,000 fee would not only offset foreclosure-related expenses but also for “K-12 and community college purposes, . . . public safety purposes, including, but not limited to, local police, county sheriffs, and local fire protection, . . . redevelopment activities, . . . including, but not limited to, the construction of affordable housing, . . . mitigating the effects of foreclosures on the community, including, but not limited to, reimbursement of the county recorder's costs in collecting the [fee], . . . [and] loans for small businesses.”

The California Bankers Association considers the fee to be a “tax on all properties in foreclosure” and contends that it will not help people who are falling behind on their mortgage payments. The legislator who introduced the bill responded that the fee was not intended to help people with their mortgage payments.

As constructed, the fee is much more than a fee designed to reimburse government for the direct and indirect consequences of foreclosure. It makes sense to charge for the cost of handling the paperwork or digital processing of the foreclosure documents and other filings. It makes sense to reimburse government for the increased cost of police and other activities generated by the existence of unoccupied properties going through foreclosure. It makes sense to reimburse the government for the cost of demolishing foreclosed properties that fall into serious ruin through neglect, vandalism, or uninsured casualty. But it is difficult to defend directing some of the proceeds from the fee to other public activities not connected with the foreclosures, just as it is difficult to defend using bridge tolls to fund soccer stadium construction, as I explained in Soccer Franchise Socks It to Bridge Users, and further explored in Bridge Motorists Easy Mark for Inflated User Fees.

A plausible argument can be made that it makes sense to use some of the funds to educate people so that they avoid foreclosure and its consequences, for example, by refraining from purchasing homes beyond their means, by establishing a program of regular savings, and by learning and following sensible household budgeting practices. Yet this sort of education ought to occur long before foreclosures occur. It needs to happen before people purchase homes. Education of that sort and at that point in time needs to be financed by a fee imposed on home purchases. In this respect, it is akin to insurance. Is it not better to charge a small fee at the time of mortgage application, to fund education that reduces the chances of the applicants ending up in foreclosure, than to charge a huge fee when disaster hits the small percentage who face foreclosure? Similarly, a fee imposed on mortgage brokers, loan processors, mortgage underwriters, and others involved in the making of mortgage loans would make much sense, provided its proceeds were used to regulate and educate the people whose bad decision-making triggered the housing market crisis. Unfortunately, it’s anyone’s guess as to which industry, currently unregulated or under-regulated and currently free of user fees and education requirements, is engaged in unwise decision-making that will trigger the next economic bubble and collapse. But if it can be identified, any proposed user fee should not be treated as a source of revenue to be used for unrelated purposes.

Monday, May 09, 2011

Whether There is Money Depends on Who’s Asking

Governor Chris Christie of New Jersey has been making a reputation for himself as a “cut taxes, cut spending” activist. His position rests on the claim that because the state has limited revenue and ought not raise taxes, it must cut spending.

Christie’s decisions have been consistent with his approach. He has resisted tax increases. He has cut spending. His spending cuts, though, have imperiled the state’s citizens. For example, in Cut Taxes + Cut Spending = Reduced Education?, I criticized the decision by the Christie administration to cut school spending in order to protect New Jersey’s wealthy by not renewing the “millionaires’ tax.” The decision to eliminate vehicle safety inspections, as discussed in Cut Taxes, Cut Spending, Cut Safety?, surely make life on the state’s highways much more dangerous. As I explained in The Price of Insufficient Tax Revenue, Christie’s decision to cut back on state aid to Camden compelled that city to reduce its police and fire fighting forces to the point that residents’ safety was endangered. Yet when the state of New Jersey faced higher than budgeted snow removal costs, Christie lost no time in asking the federal government, that is, taxpayers elsewhere in the nation, to foot the bill, as described in When is No Tax Increase a Tax Increase?.

But now comes news that when it comes to spending that benefits people with substantial financial resources, Christie doesn’t hesitate to dish out benefits. According to this recent Philadelphia Inquirer article, Christie has agreed to hand over hundreds of millions in tax breaks to the developers of Xanadu, a planned shopping mall, amusement park, theater, indoor ski slope, and entertainment complex in northern New Jersey. The company behind the plan, Triple Five, is owned by the Ghermezian brothers, who, according to multiple sources, including, for example, this one, are far from poor. Tax breaks, of course, are nothing more than government spending equivalent to a direct grant to the taxpayer getting the tax break.

So why does a company owned by billionaires need tax breaks from a state that refuses to raise taxes and has been cutting essential services? The answer is simple. It doesn’t. But the important question isn’t why the company needs tax breaks.

The important question is why does a company owned by billionaires get tax breaks? The answer is simple. Because it can. The even more important question is why can a company owned by billionaires get tax breaks? The answer is simple. Because it is owned by billionaires.

Christie defends his decision to extend tax breaks, in other words, to spend money on grants, to Triple Five by claiming that the development will create jobs. If New Jersey did not dish out hundreds of millions to Triple Five, how many fewer jobs would be created? More important, if the development cannot be sustained without the infusion of hundreds of millions of taxpayer dollars into a company owned by billionaires, why should the government not listen to the message thus being sent by the private sector and its free markets? Is not opposition to government “interference” in the private sector and in free markets one of the cornerstones of the platform brought to us by the “cut taxes, cut spending” crowd? If there’s no money when the people of Camden need police, or when vehicles need to be checked for safety violations, or when children need to be educated, why is there money when a company owned by billionaires asks for hundreds of millions of dollars? Could it be that this company and its owners are more important to some people than are the residents of Camden, the drivers on New Jersey roads, and the children of the state’s residents?

I daresay that the investment of hundreds of millions of dollars in the education of New Jersey’s children will pay off more in the long-run than the investment of hundreds of dollars in the enrichment of a company owned by billionaires. Education of children creates a long-term asset that will pay dividends in the future as America competes with the highly educated children of India, Brazil, Japan, China, and other nations. Education is a life-long asset that keeps on giving. A glorified shopping mall entertainment complex is a wasting asset that will keep asking. For money. From taxpayers. From taxpayers who are told there’s no money to help educate their children.

Friday, May 06, 2011

Motor Fuels Tax Holiday Déjà Vu

Richard: “Legislators in New York have introduced a bill to suspend the gasoline and other fuel taxes for Memorial Day weekend, Independence Day weekend, and Labor Day weekend.”

Monica: “That’s great. I’ve been paying a lot for gasoline. Maybe they'll do that in every state.”

Grady: “Can’t help but overhear. I think it’s a bad idea.”

Richard: “Why? How can something that reduces what we pay for gasoline be a bad idea?”

Grady: “Whatever the state doesn’t collect in fuel taxes means that much less it has to spend on fixing roads and bridges.”

Monica: “So what? The state has lots of money.”

Richard: “Well, THAT’S not true. The state is in financial difficulty.”

Grady: “Exactly. Less fuels tax revenue, less road repair.”

Monica: “We don’t need new roads. That just encourages people to drive.”

Grady: “I’m not talking about new roads. I’m talking about all those potholes.”

Richard: “Yeah, they’re all over the place. Why are they so slow in fixing them?”Grady: “It costs money to fix potholes. There’s not enough fuels tax revenue as it is, and a so-called tax holiday means that there’s less money.”

Monica: “So what’s the big deal about potholes?”

Richard: “Well, if you hit one, it can be bad.”

Grady: “Exactly. Worse case, you lose control of the car, perhaps die, kill someone, injure somebody. But even without that sort of tragedy, it knocks the front end out of alignment.”

Monica: “The what?”

Richard: “The way the tires are set matters, and a jolt can make the various parts holding them in the correct angles go awry.”

Monica: “So?”

Grady: “It wears out the tires faster, and causes the car to burn more fuel per mile.”

Monica: “Can it be fixed?”

Grady: “Sure, but it will cost way more than the few pennies you saved from the gas tax holiday.”

Richard: “So you’re saying that saving a few pennies on gasoline in the short-term is a long-run bad idea?”

Grady: “Perhaps it would help if people drove in a manner that reflected their awareness of how precious and expensive gasoline really is.”

Monica: “What do you mean?”

Grady: “Here’s an example. Last week I was driving on a road with a 55 mile-per-hour speed limit. I was speeding, doing about 62. EVERY CAR on that road passed me. I passed no one except an old truck.”

Monica: “So? You’re holding up traffic.”

Grady: “They passed me like rocket ships. Imagine if they slowed down, if not to 55, perhaps to 60 or 65, instead of the 75, 80, 85, 90 that many of them are driving. They’d reduced their gasoline consumption by 10, 20, 30 percent. They could drive the same distance on 10, 20, 30 percent less gasoline. That’s the equivalent of cutting 40 cents, 80 cents, even $1.20 off the cost of a gallon of gasoline. Much more than three weekends of knocking 20 or 30 cents off the cost of a gallon of gasoline.”

Monica: “Oh.”

Richard: “So if people really cared about the cost of gasoline they wouldn’t waste it?”

Grady: “Exactly. Actions speak louder than words. When I see fewer people driving at 80 on roads posted for 55 miles-per-hour, when I see fewer people driving children to school while school buses are half empty, when I see people bundling their errands into fewer trips, when I see people keeping their tires inflated to the proper level, then I’ll believe that these high gasoline prices really matter.”

Richard: “You should explain this to everyone.”

Grady: “Someone already has. Five years ago, the guy that writes MauledAgain, in A Tax Trifecta: Gas, Enforcement, and Special Interests, explained why it makes no sense to reduce gasoline taxes. A year later, in Raise, Don’t Lower, Gasoline Taxes, he explained again why gasoline tax reductions and holidays make no sense in the long term. Three years after that, he wrote, in Tax Holidays, “Going on a tax holiday is one of the worst things that this nation could do. That would be the equivalent of spending hours in a tanning booth before going out into the sun without sunscreen.”

Monica: “Never heard of the guy. Never read his stuff.”

Grady: “You and most other people.”

Richard: “And if they did, they wouldn’t like what they read.”

Grady: “No kidding. I guess he’s not running for office or looking for votes.”

Wednesday, May 04, 2011

Taxes, User Fees, and, Now, Fines

Generally, governments raise revenue either by imposing taxes or collecting user fees. There is a third source of revenue, one that has received little, if any, attention on MauledAgain. Revenue flows to governments in the form of fines imposed for behavior that violates a civil or criminal statute.

A recent Philadelphia Inquirer story about the use of fines collected from motorists caught by red-light cameras running through red lights has opened the question of how those revenues should be used. The Pennsylvania experience is both instructive and troubling.

According to the story, Philadelphia is the only locality in Pennsylvania that is permitted to use red-light cameras. From 2005 through the current fiscal year, the city collected $32.1 million in fines. Of that amount, $15.4 million was used to reimburse the city’s parking authority for maintaining and operating the cameras. The $16.7 million balance was divided evenly between Philadelphia and the state, which allocates its share among localities throughout the state. The even split is the same ratio used to divide the proceeds of fines collected from motorists who are issued tickets for running red lights when the ticket is issued by a police officer and not by a camera. Thus, of the fines collected by Philadelphia for traffic violations in Philadelphia, $300,000 went to McKeesport for a new traffic-control system, $12,800 went to Aliquippa for a school-zone flashing light, $218,000 went to Highspire for traffic-control upgrades, and $75,000 went to Scranton for left-turn signals.

A member of the state House has decided to introduce legislation that would eliminate the split of red-light traffic camera fines. It is unclear whether the legislation would apply to the split of fines from tickets issued by police officers. What also is unclear is the disposition of fines paid by motorists who receive tickets from police officers in places other than Philadelphia for running red lights.

If the fines collected by cities and towns throughout Pennsylvania from motorists who violate red-light, or any other traffic, regulation are kept by those cities and towns, why should Philadelphia relinquish half of the fines that it collects? That makes little sense in terms of equity and symmetry. It makes even less sense if one considers the relative fiscal poverty of Philadelphia when compared with many, though not all, of the other localities in the state. If Philadelphia chooses to enforce traffic laws to the point that it generates net revenue, why should it share that net revenue with other cities and towns that may or may not be enforcing traffic laws with similar rigor?

True, in an ideal world, there would be no net revenue from traffic fines, because the goal of the red-light camera program, and the goal of having police officers observe traffic, is to discourage behavior that poses safety risk to the offending motorist and to innocent passers-by and drivers of other vehicles. The surge in revenue is frightening, because it reveals the absurdly high number of motorists running red lights. That, of course, is no surprise, as anyone who lives or works or visits in or near Philadelphia knows that red-light running is close to a sport.

Until the day arrives when motorist compliance with traffic rules is much improved, there needs to be a sensible way to make use of the fines that are collected. There seems to be a consensus that the cost of collecting the fines should be reimbursed. Any excess, it seems to me, should remain with the jurisdiction that enforced the traffic regulation and collected the fines. To be fair, all cities and towns in Pennsylvania ought to be permitted to use not only red-light cameras but also speed cameras, should be encouraged to enforce traffic laws, and should be permitted to use the fines to reimbursed themselves for their expenses and for making improvements that improve traffic safety. From what I observe, though Philadelphia deserves its reputation as a city of red-light runners and traffic law violators, the same can be said of most other places in the state. What are the other localities doing with the fines they are collecting for traffic violations? Is compliance so much better in other places that there is no net revenue and thus a need to seek funds from Philadelphia’s net revenue?

But until the day arrives when noncompliance with traffic rules disappears, the question of how to use the revenue generated by fines for noncompliance will persist. The fine has some trappings of a user fee, though user fees generally aren’t intended as deterrents and fines are, and so there is a good argument to use the revenue as one uses the money generated by user fees. It should be used to defray the costs to society of traffic law violations and to minimize the danger to society of those violations, such as improvements that increase protection for pedestrians on sidewalks who are vulnerable to reckless drivers ignoring red lights and other traffic control devices.

Monday, May 02, 2011

Revenue: Is It All in The Name?

Readers of this blog know that I prefer that governments enact user fees when that is possible, as I explained seven years ago in Equitable Taxation. In Yet More Reasons to Prefer User Fees, I elaborated on the advantages that user fees provide when compared to certain business receipts taxes. The connection between costs incurred by governments when providing services and the user fee imposed on those receiving the benefit of those services was discussed in User Fees and Costs.

According to this story appearing last Friday, the President of the Pennsylvania Senate, Joe Scarnati, has revealed the details of a “local impact fee” that he plans to propose. Whether Scarnati, a Republican, will obtain the blessing of the state’s Republican governor, who opposes all tax increases and all new taxes as a matter of principle, remains to be seen. The governor, who has said he would consider a fee, also explained, through a spokesperson, that he was willing to “look at” a fee but had not promised to “endorse” a fee. Similarly, House Republicans were similarly noncommittal. The proposal would require developers to pay a base fee of $10,000 per well, with additional amounts based on production and the price of natural gas. The bulk of the revenue would go to counties and municipalities where the drilling occurs, with the rest going to conservation districts, statewide environmental projects, and statewide infrastructure projects.

The chances of the fee being enacted are not only questionable because of the governor’s noncommittal attitude, but also because Democrats, and at least one Republican senator, prefer a severance tax. One reason for that preference is the availability of the revenue to fund expenditures throughout the state, whether or not directly or indirectly connected to the drilling. They consider the tax “the best way to get drillers to pay their fair share,” and point to how all the other states imposing severance or extraction taxes use the revenue.

Interestingly, Friday’s story begins, “It is a fee, not a tax,” as though that might make a difference. It is doubtful that the changing of a word will matter much to those who oppose new taxes and increases in existing taxes. To them, a fee represents a government taking just as does a tax. The notion of compensation for what drillers and producers are taking from the state’s residents doesn’t seem to enter the picture for many of them. That approach prevents the discussion from reaching the more important aspect of the issue. To what purpose should the revenues from a user fee be put? In When User Fees Exceed Costs: What to Do?, I argued, “But when a government imposes a user fee, it ought to charge no more than is necessary to provide what the user fee purchases.” The costs imposed by Marcellus Shale drilling and production on the state’s residents can be computed. Those costs ought not be limited to direct costs, such as the monies required to repair roads and bridges damaged by heavy vehicle use, but also indirect costs, such as increases in water bills on account of water companies incurring increases in the expenses of testing and cleansing water affected by the drilling. The notion that user fees ought not be used for completely unrelated purposes was further explored in User Fee Philosophy Vindicated.

Unfortunately, the more time that is wasted by politicians trying to milk this issue for electoral advantage the more revenue goes down the drain. It’s time for the state’s elected leaders to act like leaders rather than supplicants for votes. It makes no sense to fiddle while things are burning.